AOPA Turbine Pilot Magazine - November 2020 - 28

FOR THE RECORD

Prescription for trouble

BY JARED ALLEN

Consider your answer to 'current' medication use
"DO YOU CURRENTLY USE ANY MEDICATIONS?" is asked

JARED ALLEN

is managing
attorney for AOPA's
Legal Services
Plan and is an
instrument-rated
private pilot.

by both the FAA's medical application and the BasicMed
exam checklist, and it seems some applicants interpret
the question in a very literal way. Two cases involving
pilots who asserted that they did not "currently use"
any medication at the time they completed the medical
application might serve as a caution to others to carefully consider their own answers to this question.
Question 17(a) is the same on both the MedXPress
application for a first, second, or third class medical certificate and the Comprehensive Medical Examination
Checklist (CMEC) for BasicMed: "Do you currently use
any medication (Prescription or Nonprescription)?" For
"yes" responses, the MedXPress form seeks medication
name, dosage, dosage unit, and frequency, and whether
the medication was previously reported; the CMEC asks
for medication name, dosage, and frequency.
It is critical that pilots properly answer questions on
the medical application and CMEC. AMEs and statelicensed physicians use this information to determine
whether a medication or the underlying condition it
may be used to treat prevents a pilot from safely flying.
Under FARs 67.403 and 61.59, the FAA may revoke all the
certificates of an airman who knowingly makes a false
statement on a medical application or BasicMed CMEC.
Cases alleging that a pilot intentionally falsified his
or her response about medication use often turn on
the pilot's credibility and understanding of the phrase
"currently use," especially when the pilot asserts, as a
defense, that he or she believed the answer provided
was correct. In a 1992 case, a pilot's certificates were
revoked based upon allegations that he falsified two
medical applications by, among other things, failing to
report the use of lithium and Prozac. He testified that
he had taken lithium only infrequently, but pharmacy
records indicated that over an 864-day period, prescriptions for 2,700 lithium tablets had been issued and filled.
Ultimately, the law judge concluded that the pilot
attempted to avoid reporting the lithium by theorizing
that, if he did not take this medication during, shortly
before, or shortly after the time of his application, he
could state he was not currently taking it. This, in the law
judge's view, resulted in an intentionally false statement.
On appeal, the pilot asserted that he truthfully
answered the question in accordance with common
use of the word "currently." The NTSB agreed that the
phrase "'currently use any medication' must be read as it

28 | AOPA PILOT November 2020

would be normally and reasonably understood" but disagreed on how it applied in this case. Deciding to uphold
the revocation, the board reasoned that the pilot's filling of the prescriptions supported a finding of "current
use" because the medication was "a recurrent and standard part of his treatment to the extent that a reasonable
person would consider it a medication currently in use."
Following the hearing in another case, in 2019, the
law judge found that the pilot had been prescribed
medication and was intending to fill the prescription
and begin using it, but not until the day after he completed his medical application. Concluding that "such
actions are deceptive and designed to circumvent the
purpose of the medical application process in question
17(a) specifically, which is to identify medications that
may impact an individual's medical fitness to fly," the
law judge upheld revocation of the pilot's certificates.
On appeal, the NTSB agreed with the law judge's
findings and noted that it considers "the incentive an
airman...would have for not disclosing information that
presumptively would be significant to the certification
decision" and found that the evidence established that
the pilot was "an individual with a strong motive not
to disclose his use of [medication], whose words and
actions are indicative of an individual trying to conceal his use of an unapproved medication."
In addition to safety concerns about medication use
and flying, there are various ways the FAA may learn
about a pilot's undisclosed use of medication, with
one example being FAA demands for additional medical information under FAR 67.413. These demands are
often made after a medical condition is disclosed to the
FAA or identified by an AME's examination, and it is not
unusual for prescription records, sometimes dating back
10 years, to be among the requested documents.
Pilots with any concerns about the medical application or CMEC should seek clarification prior to
completing the application. Pilot Protection Services
members can speak with AOPA Legal Services Plan
attorneys and AOPA medical certification specialists.
The FAA's Do Not Issue-Do Not Fly list (faa.gov/go/
dni) provides important guidance as to how certain
medications affect an airman's eligibility to fly. AOPA
EMAIL jared.allen@aopa.org

The AOPA Legal Services Plan is offered as part of
AOPA's Pilot Protection Services (aopa.org/pps).
http://www.faa.gov/go/dni http://www.faa.gov/go/dni http://www.aopa.org/pps
AOPA Turbine Pilot Magazine - November 2020

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